PRELIMINARY REMARKS
Good evening Mr President, members of the FJDC, our guests, I thank Members for asking me to give this talk on an issue which has become very troubling in our community, and has been causing great anxiety and distress to property owners particularly in the Western Area. There are problems too, with land owning in the Provinces, and these have sometimes been addressed by the Local Courts in the respective Chiefdoms. Until recently, that is before the passing of the Local Courts’ Act, 2011 – Act No. 10 of 2011, these Courts remained independent of the Judiciary, and Lawyers did not have any right of audience in them. Since the passing of that Act, Local Courts have been brought into the mainstream of the Judicial decision-making process. The Chairman, Vice-Chairman and members of the local Court, are now to be appointed by the Chief Justice after consultation with the Judicial and Legal Service Commission, of which I was a member for 5 years prior to December, 2014. The procedure to be followed in adjudicating disputes has been streamlined and regulated. Lawyers generally, do not still have audience in these Courts. They can however, represent themselves in proceedings in these tribunals. A Local Court has jurisdiction to amongst other things, “...to hear and determine all civil cases governed by customary law, including cases between Paramount Chiefs or Chiefdom Councils, involving title to land.”

CUSTOMARY LAW
Listeners may be wondering why I have started off with customary law matters and local courts. This method is intended to dispel the notion some of us may have, that there are no real land disputes in the Provinces, and that these disputes are confined to the Western Area. A large number of the cases dealt with by the Local Courts, before the coming into effect of the 2011 Act involved disputes relating to title to land – commonly called “bush disputes”. The thinking prevalent amongst persons not coming from the Provinces, is that all lands in the Provinces are owned by the Chiefs. As a matter of fact, lands in the Provinces are held by the Chiefs as some sort of trustees for the true landowners. They are said to hold the land in Usufruct for the real beneficial owners, usually, families. It is true of course, as I shall shortly explain, that in strict terms of the Law, the freehold tenure of land cannot be transferred or transmitted in the Provinces. That notwithstanding, Deeds conveying the freehold title to property have been registered time and time again. Banks for instance, in the Provinces, do accept these Deeds, defective as they are in Law, as security for loans. If they were not to do so, it would well nigh be impossible for anyone in the Provinces to be able to obtain loans or over draft facilities from Banks.

REGISTRATION OF INSTRUMENTS
Having dealt briefly with matters relating to the Provinces, let me now turn my attention to land tenure in the Western Area. I shall begin by stating at once, that contrary to the widely held belief, there is no system of registration of titles to land in Sierra Leone. The Law we have deals with registration of instruments evidencing ownership of land. There is no system by which we can say for certain, that once this land has been bought by Mr A, Mr A’s title will be registered for all purposes and for all time, and that no one else will be able to deprive him of his title, unless he freely transfers it during his lifetime to someone else, or, it is transmitted to his next-of-kin or his heirs at his demise.

NATIVES AND NON-NATIVES
I should also try to explain the difference between persons who are described as natives and non-natives of Sierra Leone, as far as it concerns land tenure. Section 4 of the Interpretation Act,1971 as amended by the Sierra Leone Citizenship Act,1973 – Act No. 6 of 1973 and the Sierra Leone Citizenship (Amendment) Act,1976  - Act No. 13 of 1976 describes a “Native” as “a citizen of Sierra Leone who is a member of a race, tribe or community settled in Sierra Leone other than a race, tribe or community – (a) which is of European or Asiatic or American origin; (b) whose principal place of settlement is in the Western Area.” “Non-Native” is defined in the 1971 Act as someone who is “..any person other than a native.” Interestingly, the 1973 Act, had removed paragraph (b) from the definition of a native; but the amendment Act in 1976, reinserted that limitation.

   These two definitions of “Native” and “Non-Native” meant, in effect, that Creoles were non-natives for the purpose of owning land in certain areas. That this is the true intent of the Legislature, The Laws (Adaptation) Act,1972 – Act No. 29 of 1972 amended Section 2 of the Provinces Land Act, Chapter 122 of the Laws of Sierra Leone,1960, to include a definition of “non-native” as follows: “ non-native’ means any person who is not entitled by customary law to rights in land in a Province.” The effect of all this is captured in Sections 3& 4 of the Provinces Land Act, Chapter 122 of the Laws of Sierra Leone,1960 as amended: Section 3(1): “No land in the Provinces shall be occupied by a non-native unless he has first obtained the consent of the Tribal Authority to his occupation of such land.” Section 4: “No non-native shall acquire a greater interest in land in the Provinces than a tenancy for term of 50 years; but nothing in this section shall prevent the insertion in any lease of a clause providing for the renewal of such lease, for a second or further terms not exceeding 21 years.”

 
  It should be pointed out that this Act, the Provinces Land Act is intended to be, as it is stated in its long title, to wit: “ An Act to make provision relating to the tenure of land by non-natives in the Provinces”. It does not affect the rights to tenure of those described as Natives. In the preamble, it is stated: “Whereas all land in the Provinces is vested in the tribal authorities who hold such land for and on behalf of the native communities concerned: and whereas it is expedient to make provision regulating the interests in land which such Tribal authority may grant non-natives.” As such, its intendment and purport, was to allow persons who are non-natives to acquire what is known in law as a term of years certain, i.e 50 + 21 years maximum. It is still a moot point whether the words in Section 4; “...further terms not exceeding 21 years” mean more than one term of 21 years certain after the first 50 years, or, successive terms of 21 years.

   The purpose of this prologue is to show how the restrictions on all citizens of Sierra Leone acquiring land in certain parts of Sierra Leone, has seriously impacted on the acquisition and secure holding of land in the Western Area. The Western Area covers an area of about 694 square kilometres, yet still the density of the population is about 1,500 persons per square kilometre whilst in some parts of the Provinces, it is about 21 persons per kilometre. But, land can be bought freely in the Western Area by any citizen of Sierra Leone, be he a Sierra Leonean by birth, or a Sierra Leonean by Naturalization. And since I have mentioned these two categories of citizenship, I may as well say something about them at this stage.

CITIZENSHIP BY BIRTH AND BY NATURALIZATION
Contrary to the general misconception, when it comes to matters relating to land, and to, say, retail trading, a citizen of Sierra Leone, includes a citizen of Sierra Leone by Naturalization. Thus, there are many Sierra Leoneans who are not of Negro African descent, who freely own land in the Western Area. There is a crucial distinction between, for instance, eligibility to become a member of Parliament, and eligibility to own land in the Western Area. As to the former, Section 75(a) of the Constitution of Sierra Leone,1991 provides that: “Subject to the provisions of Section 76, any person who- (a) is a citizen of Sierra Leone (otherwise than by naturalization)........shall be qualified for election as ....a member of Parliament....” And Sub-Section 76(1) thereof reads: “No person shall be qualified for election as a Member of Parliament – (a) if he is a naturalized citizen of Sierra Leone.....” So, the position is that a naturalized citizen may acquire freehold title to land in the Western Area, as I will shortly show, under the provisions of the Non-Citizens (Interests in Land) Act 1966. That Act applies only to the Western Area. It defines a Non-Citizen as “(a) any individual who is not a citizen of Sierra Leone....” It does not distinguish between citizens by birth and citizens by the process of naturalization. In Section 3, it provides that: “No non-citizen shall purchase or receive in exchange or as a gift any freehold land in the Western Area.” As such, it is quite possible, for someone who is other than a negro of African descent to own the freehold to land in the Western Area.

DEVELOPMEMNT OF LAND LAW IN THE WESTERN AREA
Coming now to how landowning developed in the Western Area, The Honourable  Dr Ade Renner-Thomas has, in the leading text “LAND TENURE IN SIERRA LEONE – The Law, Dualism and the Making of a Land Policy” given the history of the development of our land tenure system, and I am indebted to him for the brief background which I shall now give.
HISTORY
Around 1787 the Temne Ruler of the area we now know as Freetown, King Tom granted, according to the British, an area measuring about 20 square miles to the British Government for the setting up of a settlement for the freed slaves from Nova Scotia and England. Around 1791 the St George’s Bay Company, sometimes called the Sierra Leone company, was formed to govern the new settlement. New settlers were to pay rent for the plots of land given to them, to the company. In 1799 the company was granted a Royal Charter. The land which was vested in the British Crown, was granted to the company. This was the Western Area Peninsula. In 1808, Sierra Leone became a Crown Colony. All lands owned by the company were transferred to the British Crown. In 1896 the rest of what we now know as the territory of Sierra Leone, was declared a Protectorate, and was ruled and governed differently from the colony, through the system of governance known as indirect rule. English Law was introduced into the then Colony in the mid 19th century. The Provinces were still governed through their customary law institutions under the suzerainty of the District Commissioners. After independence in 1961 English Law was applied directly to all parts of Sierra Leone, subject of course, in certain matters in the Provinces, to the dictates and requirements of customary law. For instance, Section 21 of the Courts’ Act,1965 provides that: “Nothing in this Act shall be deemed to invest the High Court with jurisdiction in regard to – (a) any action or original proceedings – (i) to determine the title to land situated in the Provinces other than the title to a leasehold granted under the Provinces Land Act; (ii) to establish the existence or dissolution of any marriage governed by customary law or relating to any claim founded upon such marriage; or, (b) the administration of estates of deceased persons where such administration is governed by customary law.” That the High Court of Sierra Leone had no jurisdiction to determine ownership of land in the Provinces, was confirmed by the Supreme Court, OKORO-COLE, CJ Presiding, in the case of CAULKER v KANGAMA Sup Ct Civ App 2/74 Judgment delivered 18 june,1975.

ENGLISH STATUTES
As far as land tenure in the Western Area is concerned, English Common Law and Equity, Statutes (i.e. Laws passed by the United Kingdom Legislature) of general application passed prior to 1st January,1880, English statutes of general application specifically adopted by the Sierra Leone Legislature, and our own local statutes apply. There were English statutes which were enacted after 1880 and which were specifically adopted by our Parliament through the Imperial Statutes (Law of Property) Adoption Act, Chapter 18 of the Laws of Sierra Leone,1960. Thus, the major  English statutes still in force in Sierra Leone affecting ownership of land are, for instance, the Real Property Act,1845, The Wills Act,1837, the Vendor and Purchaser Act,1874, large portions of the Conveyancing and Law of Property Act,1881, 1882 and 1892; the Settled Land Acts, 1882, 1884, The Trustee Acts, 1888, 1893, the Trustee Act 1893 Amendment Act and the Conveyancing Act,1911. From our own Legislature, we have the Public Lands Act, Chapter 116 of the Laws of Sierra Leone,1960, The Admiralty Lands Act, Chapter 123 of the Laws of Sierra Leone,1960 and the State Lands Act,1960 for example. Of considerable importance in view of the present day road works in the country, is the Compulsory Acquisition of Property (Constitutional Safeguards) Act,1961 which enables a property owner whose property has been compulsorily acquired by the Government, to seek compensation from the Government, or, if none is forthcoming, to seek redress in Court.

   Also of importance, as far as title to land is concerned is the Limitation Act,1961. Many people are of course conversant with the expressions, “Squatters’ rights, or, adverse possession. What Sub-Section 5(3) of that Act provides, in part, is that “No action shall be brought by any other person to recover land after the expiration of 12 years from the date on which the right of action accrued to him, or, if it first accrued to some person through whom he claims, to that person.” What it means is that a person who does not otherwise have title to land, could acquire such title against the true owner, if he has remained on a piece of land for at least 12 years without interruption, and without anybody challenging his right to do so. I shall return to this issue, later.

   To return now to the discussion of how our land tenure system in the Western Area developed, Dr Renner-Thomas has suggested in his work that by 1808 when the Western Area became a Crown Colony, “......The claim of the British Crown, and of those deriving title through or under it to ownership of the lands that came to comprise the territory of the former Colony was absolute. There were none of the usual reservations of rights to the ultimate or radical title made in favour of the indigenous population. Whatever vested rights these latter held over these lands were completely and effectively extinguished and were replaced by rights and interests based exclusively on English law, which henceforth came to govern land tenure within the colony (now Western Area) of Sierra Leone. Despite any doubt which might be entertained about the initial validity of the claim to absolute ownership maintained by the Crown, this theory has come to be generally accepted as the legal basis of all title to lands in the Western Area today.”

   By 1st January,1961 when the State Lands Act,1961 was passed into Law, all lands which were not already in private hands by one means or another, were said to be State lands. State Lands were defined in the Act to be: “All lands which belong to the State by virtue of any treaty, cession, convention or agreement, and all lands which have been or may hereafter be acquired by or on behalf of the State, for any public purpose or otherwise howsoever and land acquired under the provisions of the Public Lands Act and includes all shores, beaches, lagoons, creeks, rivers, estuaries and other places and waters whatsoever belonging to, acquired by, or which may be lawfully disposed of by or on behalf of the State.” The full extent of the lands  owned by the State is not quite clear. Dr Renner-Thomas in his book, suggests, that this may be because “there has never been a comprehensive survey of the lands involved, nor are there any existing accurate and reliable records of the total number of grants of land so far made by the State.” Those which the State still undoubtedly owns may perhaps be those described and defined in the Defence Lands Acquisition Act, Chapter 119 of the Laws of Sierra Leone,1960; the Admiralty Lands Act, Chapter 123; The War Department Lands (Kortright Hill and Kennedy Ridge) Act, Chapter 124; ; the Kroo Reservation Act, Chapter 127. Further, the State could acquire lands forcibly by virtue of the provisions of the Public Lands Act, Chapter 116. Section 4 of this Act, empowers the President – in colonial times, the Governor – with the consent of Parliament , to acquire lands for public works. The process for doing so is set out in the rest of the Act. And as I have stated above, the Compulsory Acquisition of property (Constitutional Safeguards) Act of 1961 provides the method by which persons affected by the forcible acquisition, can seek compensation for the same.

FREEHOLD TENURE
So far, we have seen how the State is said to be the freehold owner of land. The freehold tenure is the largest and most important tenure in land law. A freehold estate could be created either in fee, or, for life. When someone is said to own the fee simple estate in any landed property, it means that as against the rest of the world, he is the person who is entitled to deal with the land as he pleases. He may sell it to, another; he may lease it; he may use it as farm land or for some other commercial purpose; he may even leave it vacant and undeveloped. If however he has only a life interest in the property – for instance – when land is said to be conveyed to A for life with remainder to B absolutely, A does not hold the simple estate; he has to pass on the property to B, though in certain instances, he may be able to apply to the Court to “cut off the entail” so as to be able to sell the property before it is passed on to the remainder-man, which is what his successor-in-title is called in law. There are other smaller interests in land, such as for instances, leases, rights of way, easements  and the like. These smaller interests differ from the fee simple in that the owner of the interest holds his interest at the behest of the person who holds the fee simple estate in the property. So that if the fee simple owner of property leases it out to another, that other has a duty to give up possession at the end of the lease term. Whilst the fee simple owner will not be able to exercise any right of possession during the currency of the Lease, he has a right to possession once the lease term ends, or, in well-defined circumstances, when and where there has been a breach of a term or terms of the Lease.

EQUITY
What I have described above is the position at what, we call the Common Law. But because of the rigours and rigidness of the rules at Common Law, there developed over a period of time, a set of Rules which were applied in the Courts of Chancery, or, the Lord Chancellor’s Court, in England. The Court of Chancery developed what is now known simply as a Trust. Simply put, the purport of Equity, or the Rules of Equity, is and are to ensure that the person who should benefit from a certain piece of property, gets the benefit thereof, and is not prevented from doing so by the person who holds the legal title to the property. Thus, it is quite possible for the legal estate in property to be held by one person, and the equitable estate by another.

   It is said that Equity takes as done that which ought to be done. So that if a man dies testate, i.e. leaving a Will, and appointing Executors, the Executors will be said to be the legal owners of the property; but the equitable or beneficial owners of the property will be the persons to whom the property has been devised in the Will; after taking Probate of the Will, it is the duty of the executors to ensure that the property is vested in the devisees named in the Will. The executor could also be a beneficiary named in the Will. The only restriction so far as Wills are concerned, is that a witness to a Will, cannot benefit from the Will.

   Also, Equity, it is said, will not allow a person to use the law as an instrument of fraud. Thus, if for instance, Mr A has agreed to sell his house to Mr B, and Mr B has begun paying him the purchase price by instalments, Mr B cannot, generally speaking be allowed to sell the same property to a person who comes to him later with a larger offer. In cases such as these, the Courts will grant the remedy known as specific performance to Mr B as Mr B would have provided what is known in Law as part performance, i.e. the payment by instalments. This is the basis of a Judgment I delivered in the Court of Appeal in the case of Civ App 50/2007 - AHMED v BAH. There I explained what Notice of someone else’s interest means in Sierra Leone Law. Whilst giving the judgment of the Court in February, 2010, I said: Section 3(1) of the Conveyancing and Law of Property Act,1882 (and not the 1881 Act as cited by Mr Tejan-Cole) which is part of the adopted Law of Sierra Leone by virtue of Schedule to Chapter 18 of the Laws of Sierra Leone,1960 provides that: “ 3(1) A purchaser shall not be prejudicially affected by notice of any instrument, fact or thing unless – (i) It is within his own knowledge, or would have come to his knowledge if such inquiries and inspections had been made as ought reasonably to have been made by him; or (ii) in the same transaction with respect to which a question of notice to the purchaser arises, it has come to the knowledge of his counsel, as such, or of his solicitor, or other agent, as such, or would have come to the knowledge of his solicitor, or other agent, as such, if such inquiries and inspections had been made as ought reasonably to have been made by the solicitor or other agent.” Clearly, this provision attributes constructive notice to the purchaser. The subject of the notice need not be a Deed or registerable Instrument  as in the case of equitable charges registered as Land Charges under the English Land Charges Act, 1925. It could be a fact or thing, and not necessarily an instrument. The facts of this case show, that at the time the purchase price was paid in full by the Respondent, she had not made the proper inquiries as to the status of the property, to wit, whether there was any equitable right binding the 5th Defendant to another person. It follows that, the Respondent cannot lawfully or factually claim that she was a bona fide purchaser for value without notice. That being the case, and the LTJ having so found, and having found also, that as of 17th June,1995, the 1st Defendant had an enforceable right to have a Deed executed in his favour, it is my Judgment, that she should have found that the Respondent could not then be entitled to possession of the property, as she had been in a position where she could have found out, that the 5th Defendant had no beneficial interest to convey to her.”

HOW DOES ONE ACQUIRE THE FEE SIMPLE ABSOLUTE IN LAND
But let us move on to the major question, which is, how does one acquire the fee simple estate in landed property? As I intimated above, one could acquire it by adverse possession, in which case, the Law says that the original owner’s title to the property has become extinguished by the passage of time. One could also buy the property. When one buys landed property, the Law stipulates, and has so stipulated since 1964 by the Registration of Instruments (Amendment) Act,1964 that the deed of conveyance must be registered within 10 days if executed within the Western Area; 60 days if executed in the Provinces; and one year if executed at some other place. Where a deed has not been registered within the statutory period, the 1964 Act empowers the Court to grant an extension of time within to register the deed, provided the court is satisfied that “..... the failure to register was not due to any fault of the applicant; or, the applicant’ failure to secure registration in time was, in all the circumstances of the case, excusable.” Registration out of time is not as simple as it may sound. Take for example, a deed executed by the seller last year. The deed was not registered. Some problem develops relating to the land and the purchaser wishes to prove that his title stretches back to last year. When he applies to the Court for Registration out of time, he must also ask that the Registration takes effect from the date the deed was signed, and not just the date the Order granting extension of time was granted. In Supreme Court civil appeal 1/80 – GRACE JOHNSTON v YVONNE NICOLS & YVETTE DAVIES, Judgment delivered 16 December,1981 the Supreme Court upheld, by a majority, the decision of the Court of Appeal that failure to register a deed made in 1967, 6 years later, was excusable.
 
   The same Court has also held that when one goes to Court to seek a Declaration of Title to land, one has to succeed on the strength of one’s own title, and not on the weakness of the title of the other side. This was decided in 1981 as well in the well known case of DR.SEYMOUR-WILSON v MUSA ABESS Sup Ct Civil Appeal 5/79. The case also made it clear, that a deed of conveyance is not superior in quality to a statutory declaration. What matters really is the strength of the title.

STATUTORY DECLARATIONS
It is widely thought that statutory declarations are somehow inferior to deeds of conveyances, and as such should be rejected by the Courts. Well before it became mandatory in Law, to register interests in land, a wide section of the populace had no documentation to prove ownership of land, though the Statutory Declarations Act,1835 which forms part of Sierra Leone Law by virtue of Section 74 of the Courts’ Act,1965 had been in force for over a hundred years. Thus, if one’s family had been in possession of property say, for over 100 years, without any documentation to prove it – say for instance, the land descended from the one of the first settlers, and their descendants were still occupying or had the right to possession of the property, it would be most unfair and unjust to prevent the present generation from enjoying the fruits left and provided by an earlier generation, just because there was no paper writing to prove ownership. This is where a Statutory Declaration becomes necessary. The Statutory Declaration is not what confers title on the person who is claiming entitlement to the property by virtue of long possession. It is the recitals in the deed which would go to determine whether the person who is laying claim to the land, is indeed the owner.  So, for instance, if someone in a statutory declaration says he has been in possession of a certain piece of land for upwards of 40 years, but there is evidence that he is only 20 years old, such a statutory declaration would fail in Court simply because the recital is untrue and unsupportable.

   The fact that this statutory declaration mechanism has been abused by quite a good few, does not detract from its efficacy in 21st century Sierra Leone. As LIVESEY LUKE, CJ pointed out in the SEYMOUR WILSON v ABESS case, “Indeed the Courts in Sierra Leone have on innumerable occasions decided in favour of owners of a possessory title without documents of title against the holders of registered conveyances.” He cited the case of COLE v CUMMINGS (No.2) [1964-66] ALR SL 164 in support of this dictum.

SEYMOUR-WILSON v MUSA ABESS
I shall now turn to the facts of the SEYMOUR-WILSON case. The Plaintiff in that case, Mr Musa Abess, relied on deeds  made in 1951 and 1952. The Court said that in order to succeed, Mr Abess had to prove that in 1951 Gershon Cole, was the fee simple owner of the property which he conveyed to Assad Yazbeck, and which Assad Yazbeck in turn, conveyed to Mr Abess. The 1951 deed was a statutory declaration made by Gershon Cole and two others. None of the three were called to give evidence for the Plaintiff.  As LIVESEY LUKE, CJ pointed out in his judgment, “.....mere registration of an instrument does not confer title to the land affected, on the purchaser unless the vendor had title to pass or, had authority to execute on behalf of the true owner.....” The fact that Musa Abess relied on a deed of conveyance which pre-dated that of Dr Seymour Wilson, whose deed was only executed in 1967, was not enough to ground a finding that he was the rightful owner of the land. But there was still a twist to the whole saga. Whilst Mr Abess did not succeed in his claim for a Declaration of Title, he succeeded on his claim for Damages for Trespass. In cases of Trespass, what the Plaintiff has to prove is a better right to possession than the Defendant. He can prove this by showing that he has a better title. But as LIVESEY LUKE,CJ pointed out in the same case, “..better  title in the context of an action for trespass is not necessarily a valid title.     In a case of trespass, the court is only concerned with the relative strengths of the titles or possession proved by the rival claimants .”
ADVERSE POSSESSION
Let me now turn my attention a bit to the concept of adverse possession. I have outlined above what it means, and its implications. We had to deal with this issue in the Court of Appeal in Civil Appeal 23/2008 – GASSAMA v SHERIFF & ORS. In delivering the judgment of the Court in June,2013 I said, inter alia, : "We think it would be a good idea to refer to the leading text on land law in Sierra Leone authored by Mr Johnson’s one-time head of chambers and former Chief Justice, Hon Justice Renner-Thomas, LAND TENURE IN SIERRA LEONE (2010). At pages 127-128, this is what the Learned Author had to say: “The first provision of importance is that which states that, where an owner of land is entitled to possession, time does not begin to run against him for the purposes of the Act unless he has been dispossessed or has discontinued his possession and adverse possession has been taken by some other person. What amounts to dispossession and discontinuance of possession as a basis for adverse possession was considered by BEOKU-BETTS,J in the case of PRATT v NICOL [1937-49] ALR SL 277 (not 377 as appears in the book) H.C. According to the Learned Judge “dispossession” suggests some active steps by the claimant to take possession from the owner or to drive him from possession. “Discontinuance” on the other hand, implies that the owner has abandoned his possession and some other person has taken over possession. However, as BEOKU-BETTS,J emphasised in PRATT v NICOL, it is not sufficient that the owner goes out of physical occupation of the land. For discontinuance to be effective the intention to abandon must be clear and ‘the evidence must show that it was complete and that the defendant after such discontinuance obtained exclusive possession for the statutory period’. .....Adverse possession, as used in section 11(1) of the Act, does not bear a technical meaning but has been construed to mean simply possession inconsistent with the possession of the owner.”

   In the case cited by Hon Justice Renner-Thomas, BEOKU-BETTS,J went on to say at page 281, LL22 et seq in dealing with the concept of discontinuance, “....It is not sufficient for the owner to go out of the physical possession of the premises. There must be evidence of the acts of the defendant inconsistent with the possession of the owner. If the defendant’s acts are consonant with his recognition of the continued possession of the owner, he or she could not claim to have exclusive possession though in fact, he or she occupied the premises.”

   In this short extract, I have tried to explain how someone who appears to be a stranger, could lay claim to someone else’s land. It is therefore advisable not to leave land untended and unsupervised for extended periods, or, to leave someone on your landed property indefinitely without that person paying any rent, or other dues which signify that he is aware that you are the true owner of the property in question. Someone else might easily lay claim to it on the ground that his grandfather used to plant potatoes on the land without interruption or interference by anybody.

GOOD ROOT OF TITLE
 Before actually buying a piece of land, you may well ask, what must the prospective purchaser do in order to ensure that he is not being sold, what is colloquially referred to as a “pup”. He must ensure, for instance, that the prospective vendor, can provide him with a “Good Root of Title.” According to one of the leading English texts in this area of the Law, MEGARRY & WADE’s LAW OF REAL PROPERTY 4th Edition,  “....A good root of title is a document which describes the land sufficiently to identify it, which shows a disposition of the whole legal and equitable interest contracted to be sold and which contains nothing to throw any doubt on the title. Examples of documents which commonly serve as roots of title are – a conveyance on sale; a legal mortgage;  a specific devise in a Will; a Vesting Assent executed by an Executor in favour of a beneficiary in a Will; and a Voluntary Conveyance, commonly called in these parts, “a deed of gift”.

   One would also ask, what is the length of time a prospective purchaser must look for in the title of prospective vendor? This is what we refer to as a ‘good root of title’. Section 1 of the Vendor and Purchaser Act,1874, puts it at 40 years. So, when buying land, it is prudent to trace the history of the property for at least 40 years last past at least.

CONTRACT TO CONVEYANCE
The next step is to find out whether the land is encumbered: i.e whether it has any liabilities attached to it: for instance, the prospective buyer may wish to know whether the land is subject to a mortgage, in which case he might not wish to become entangled in the relationship between the mortgagor/vendor, and the mortgagee, that is the person to whom the property is mortgaged.  He may also wish to find out whether the prospective vendor is the only person beneficially entitled to the land. For if he is not, he cannot execute a valid conveyance in favour of the purchaser. The purchaser would normally request a copy of the vendor’s deed, and may himself conduct a search at the Administrator and Registrar-General’s office, or, he may instruct his lawyer to do so. The search involves painstakingly going through what are commonly called the “street book”, i.e. the index in which the transactions relating to any piece of property are recorded, or, the vendor books which record the transactions in alphabetical order. He would also need to search the Books of Leases and the Books of Mortgages, to assure himself that the property has no encumbrance such as a long lease, or a mortgage which is encumbered with a loan of, say, Le500million. Once this process has been completed and the purchaser has assured himself that the vendor’s title is in order, the purchaser instructs a surveyor to survey the property to be bought, and to draw a survey plan thereafter. In my experience as a Judge, it is these surveys which generate most of the litigation in the Courts. For if it has not been done properly, your surveyor may easily plot a piece of land as being at Syke Street, Ascension Town, when it should properly be located at say, Syke Street, Congo Town. Because we do not have, to date, a system of land registration, as against a regime for registration of instruments as provided for in the Registration of Instruments Act referred to above, it is not humanly or scientifically possible to for even the lands Department to ensure that once one has bought a piece of land, nobody will be able to lay claim to it thereafter. In the end, it is the Courts which have to decide whether one surveyor is right, or the other.

CASE EXAMPLE
To illustrate the difficulty the absence of a system of registration of titles causes, I shall refer briefly to a judgment I delivered in 2008 in Civil Case 1141/2005 UMU LEWIS v HALABI . There, I said, “....When DW4’s composite plan in Exh “F” is examined, it would be seen that the co-ordinates indicated are co-extensive with those shown on Exh “C”. The north-east co-ordinate is 636 100 and the north-west co-ordinate is 634 600. DW3’ s property as delineated on LS676/81 is not shown in DW4’s composite plan in Exh”F” and I find this rather odd, as the bone of contention between the parties appears to me to be, whether either party’s property lay on one side or the other of JAMIL’s property. In Exh “A” Plaintiff’s property is shown to lie between co-ordinates 635  100 and 634 700. In Exh “E” Defendant’s property lies between co-ordinates 635 480 and 634 720. Both properties are also shown between these two co-ordinates in DW4’s composite plan. But on the evidence before me, the answer as to whether Defendant’s property should lie between those co-ordinates is to be found in Exh “C”. There, it is clearly shown that the property of the Defendant’s predecessors-in-title lies within co-ordinates 635 000 and 636 630. It follows that Defendant’s  property ought not to have been plotted between co-ordinates 635 000 and 634 700. It is regrettable that Defendant’s surveyor did not think it fit to show or delineate in his composite plan, his perception of where the property of DW3 and his co-owners should lie. The irresistible  conclusion  to be drawn is that the Plaintiff’s property has been properly located on the evidence available, and that the Defendant’s property may have been wrongly located. I have used the indefinite proposition “may” rather than the definite proposition “must” because of what I have to say below about the Defendant’s Counter Claim. In the result, I find that the land delineated in LS1411/96 belongs to the Plaintiff, and that she is entitled to the immediate recovery of possession of the property."

   Once a proper and accurate survey plan has been drawn, and then signed by the Director of Surveys and Lands, a requirement of Section 15 of the Surveys Act, Chapter 128 of the Laws of Sierra Leone as amended, the prospective purchaser can instruct his Solicitor to prepare his conveyance. The deed would then be forwarded to the vendor for engrossment, and thereafter, it would be registered and the process ends there.

   But the fight to achieve or attain a unified system of land tenure goes on. I am a member of the CRC, and Chair of its Judiciary Sub-Committee. On Tuesday 24th instant, the CRC presented its final report to The President. The Report makes some recommendations relating to land. Principally, it has recommended that legislative and other measures be put in place to remove all structural and normative impediments, inherent in the operation of each tenure system particularly those under customary law. Mechanisms shall also be put in place to guarantee that access to land under any tenure system, by way of transfer or transmission does not deny any person his rights to land on the basis of gender, ethnicity or social or economic status. These measures should ensure equity, transparency and accountability in the allocation and management of land rights and preserve and conserve land resources for future generations; and also ensure the full protection of use rights and right to commons for all without discrimination.” The CRC endorses the implementing strategies proposed in the National Land Policy to deal with the issue of the land tenure system, as follows: The CRC recommends that a National Land Commission should be established in the new chapter of the revised Constitution on lands, natural resources, and the environment, and that its functions should include: to manage public lands on behalf of the Government; to recommend a national land policy to Government. We await Government’s response to these recommendations.

   But even before the CRC began to consider reforming our land tenure system, the need had attracted the attention of Government. In 2005, the then Ministry of Lands, Country Planning and the Environment, had formulated a draft National Land Policy. One of its objectives was to facilitate equitable access to and security of tenure of land based on registered land. Pursuant to this objective a draft Lands Commission Bill, 2005 was prepared by the Law Reform Commission. It provided for the setting up of a Land Commission, a proposal which has now been adopted by the CRC in its Report. This Commission, it was provided in that Bill, would formulate and submit to Government recommendations on a national policy with respect to land use and capability.

   Another attempt at rationalizing our land tenure system was the Land (Acquisition and Commercial Use) Bill, 2005. It also adopted the idea of the setting up of a Land Commission.  It is yet to become Law, as far as I am aware. It appears the Bill does away with some of the discriminatory aspects of the Provinces Land Act referred to above, in that it provides that any person (i.e. including a non-citizen) may acquire a lease of land in any part of Sierra Leone for a term not exceeding 90 years. But one of its clauses, would, the Hon Dr Renner-Thomas suggests in his book, would be a recipe for chaos; and that is the provision in it that: “ a trespasser actually in possession of land who has the intention to be in possession by excluding others, including the landowner, from the land by any means other than the use of force, and has maintained adverse possession for not less than 7 years…” would be entitled to be a registered owner thereof. We await its passing into law.

   Another initiative in the direction of reforming the system was the Presidential Task Force set up by this Government in late 2007 to review and to propose a revision of our Land Law. I am not presently in possession of the outcome of its deliberations. Another move in this same direction was the Land Registration Project sponsored by the International Climate Facility for Africa in 2009. That project has resulted in the establishment of a new Cadastral Map Index System based on a geodatabase linked to a new Geographical Information System (GIS) which is of great help in land use planning and natural resource management. New ideas crop up regularly, but, regrettably, nothing concrete has been done about rationalizing the whole system so as to ensure that, in the Western Area, once one has bought a piece or parcel of land, no one else can lay claim to it; and that in the Provinces, the right to freehold tenure is recognized and upheld.

I do hope you have found this explanation, stimulating and thought-provoking. I thank you for listening.

MR JUSTICE N C BROWNE-MARKE.